Car Accident

August 6, 2012

Boat Swell Accident Provides Look Into Res Judicata

The first element of an independent action in equity that allows an individual to bypass res judicata analyzes whether the judge’s determination in the original case was truly fair and made in good conscience. When a judge shows bias, as in the boat swell case, the judge’s decision is likely swayed and not independent. This is unfair to the losing party and therefore helps a claim bypass res judicata.

The second element requires that the original case claim have merit. If the claim is frivolous, then there is no reason for the court to negate res judicata and grant a new trial. This again protects judicial efficiency and duplicitous suits. When determining the merit of the underlying suit, a judge will simply read the complaint to see if it makes an actual claim that, if true, would lead to recovery. In the boat swell case, the personal injury claim did have merit and thus satisfied this prong.

The third element requires courts to determine whether fraud was a reason that the losing party did not prevail in the underlying case. Similar to the first element, fraud is likely to sway a judge’s decision to the detriment of the losing party. This is what happened in the boat swell case as the judge’s decision was basically bought with lavish hunting trips.

August 1, 2012

Houma Boat Swell Accident Victim Convinces Court of Appeals to Bypass Res Judicata

by Berniard Law Firm

Though courts are busy and judges have overflowing dockets, our justice system requires courts to find time to hear cases worthy of adjudicating. This means that judges must be as efficient as possible. One way of doing this is to require claimants to converge all of their complaints into a single lawsuit. Failure to do this will bar a claimant from bringing a second lawsuit against the same party. This legal theory based in civil procedure is known as res judicata. It seeks to maintain judicial efficiency and protect litigants from facing duplicitous lawsuit from the same claimant. This important principle is important to understand for anyone going forward in a lawsuit because it could prevent a claimant from asserting any material claims against a wrong-doer that were not asserted in the first legal action.

Though courts are assumed to be honest, deceit and bias can seep into the legal fabric. When this occurs, the justice system must reanalyze the applicability of res judicata. One illustrative example of an instance like this took place recently in the United States District Court for the Eastern District of Louisiana. The issue was complicated and was later resolved by the United States Court of Appeals for the Fifth Circuit.

The case in question involved a personal injury lawsuit where a yacht’s boat swells threw another boat into the air and injured a woman in that boat. That injured woman filed suit against the yacht owners and their insurance company. At trial, the judge found for the defendants, essentially stating that the defendant’s expert witness was more reliable than the plaintiff’s expert.

July 27, 2012

Train Accident Tests Requirements of Accident Liability

by Berniard Law Firm

Doyle, a resident of Eunice, Louisiana, lost his appeal of the summary judgment verdict denying him damages resulting from injuries he received in an automobile-train accident. On March 5, 2009, Doyle finished up an evening of cards with friends and a half pint of whiskey before getting in his car to drive home. While he was crossing the train tracks, a train owned by Union Pacific Railroad Co. collided with his car. When Doyle’s blood alcohol level (BAC) was tested at the hospital, it measured .108% – the legal limit in Louisiana is .08%. A toxicologist testifying for the defense argues that his BAC at the time of the accident would have been well above a level associated with mental and physical impairment. This impairment significantly increased his risk of ending up in a car accident.

As a result of this intoxication, unfortunately Louisiana Statute § 9:2798.4 bars Doyle’s claim. The statute does not permit recovery to a driver if the driver was (a) legally intoxicated, (b) more than twenty-fiver percent negligent, and (c) his or her negligence was a contributing factor in the accident. Many states have similar laws on their books due to the public policy concerns of allowing an intoxicated person to recover for injuries that resulted from his own voluntary intoxication. If someone chose to drive while intoxicated, why should the other party have to pay for the drunk driver’s negligent behavior? However, in order to prevent injustice, most of these laws have a requirement that the intoxicated person’s actions be somewhat negligent and that that negligence be a relevant factor of the accident.

Doyle admitted that he hadn’t looked for the train when he crossed. The crossing was marked with lights and there is evidence that the lights were flashing and the train honked its horn to warn of its approach, despite Doyle’s argument to the contrary. The first responder to the scene, a police officer, testified that the lights were working when he arrived and the event recorder on the train showed the engineer began blowing the horn 25 seconds before the collision. These two signals would have alerted a reasonable person to the train’s proximity. The trial court concluded and the appellate court affirmed that no reasonable juror could come to the conclusion that Doyle was less than 25% negligent in the cause of his own accident due to his intoxicated state and his failure to look properly for an incoming train while crossing the tracks. While the train company could be considered at fault in this case, Doyle was also at fault for driving while impaired under alcohol. Since no reasonable juror could find in Doyle’s favor in this case, summary judgment was appropriate.

July 16, 2012

Deposition Two-Step: Conflicting Reasons for Quitting Job Early Leads to Perjury Charge

by Berniard Law Firm

This case is a welcome reminder of how an attorney’s advice may sometimes lead to more harm than good. Brown brought suit against his former employer, Skagit, under Title VII claiming racial harassment and constructive discharge. In a deposition, Brown testified that his sole reason for quitting his job at Skagit was due to racial harassment. However, in a deposition four months earlier in an unrelated personal injury case, Brown testified that he left Skagit solely because of debilitating back pain suffered during a car accident. Skagit sought dismissal of Brown’s claims based on his conflicting testimony, which the district court allowed and dismissed with prejudice. The court also went one step further finding Brown committed perjury. Brown’s appeal is based on a matter of fairness, arguing that a less severe sanction is in order and that he was entitled to explain the discrepancy between the testimonies.

To emphasize the facts, in the first case, based on racial harassment and constructive discharge under Title VII, 42 U.S.C. sec. 2000e, Brown testified as to how he felt endangered by his co-workers’ threatening behavior, which involved dropping heavy plates and pipes near him. He was also distraught by his co-workers flinging derogatory remarks at him on a daily basis. He felt compelled to quit his job, as his supervisors purportedly ignored this behavior. When asked why he quit his job, he testified that the only reason he quit was because of the racial harassment. He reiterated that there were no other reasons for his quitting.

In a completely unrelated deposition for a personal injury claim, Brown testified that the exclusive reason he left Skagit was due to his debilitating back pain, which prevented him from performing his job as a welder. He again emphasized and confirmed that this was his only reason for leaving his job.

April 23, 2012

Third Circuit Upholds Alexandria Doctor’s Actions As Within Standard of Care

by Berniard Law Firm

Every year thousands of medical malpractice claims are filed. Why? The answer is simple. The practice of medicine is complex, and, as advanced as our medical sciences are, mistakes are made, false diagnosis are given, and new conditions emerge. Since there are so many complexities, the fact that a patient is misdiagnosed or suffers from a condition that the doctor missed does not necessarily guarantee a successful medical malpractice claim. As illustrated by Cheramie v. Norem, in order to succeed on such a claim, a plaintiff must establish that the doctor did something or failed to do something that fell below the appropriate standard of care which resulted in harm to the patient.

In most medical malpractice cases, including Cheramie v. Norem, the most contested issue regards the standard of care. Typically, healthcare providers are held to a reasonable care standard, requiring them to use diligence and their best judgment in applying their skills. General practitioners are held to local standards which are the standards that prevail in the area they live or a similar location. Specialists, on the other hand, are held to a single national standard that applies to the entirety of that particular specialty. Regardless of which locale’s standard applies, all standards are comprised of a number of elements which the failure to comply with can give rise to a medical malpractice claim.

Cheramie v. Norem provides a glimpse into one of these standard of care elements. In this case, a doctor provided post-operative treatment to a patient after repairing a hernia. After the hernia operation, a small hole opened in the patient’s small intestine, requiring permanent sutures. As time passed, the patient’s body began rejecting the sutures and the question arose as to whether or not the doctor should operate to remove them. After years of the doctor’s recommendation that the sutures should remain, the patient was forced by his insurance company to get a second opinion. This second doctor operated to remove the sutures, resulting in a full recovery by the patient. Afterwards, the patient filed suit against the original doctor for malpractice.

April 16, 2012

Crowley Auto Accident Gives Rise to Causation Examination in Louisiana Auto Case

by Berniard Law Firm

When an auto accident results in an injury and is taken to court, one of the most important issues a judge must decide is causation. If a plaintiff can show that an injury was directly caused by the accident, then the judge will determine the amount of damages to be awarded. However, the determination of causation can be difficult. This is especially true when figuring out whom exactly caused the accident. For example, if a car on the interstate swerves into a lane and slams into another vehicle it may appear that the driver of that car directly caused the accident. If this were true, then the driver would be liable for any injury damages. Yet, there are several factors that must be considered. Consider, was any part of the car defective? Was there a problem with the road that caused the car to swerve? The various answers to these questions can change what actually caused the accident and the injury, thereby shifting liability to differing parties.

When making a personal injury claim, the burden of proof is on the plaintiff to prove both that the defendant caused the accident and that the injuries resulted from that accident. The plaintiff need only prove these elements by a preponderance of the evidence, meaning that it is more likely than not that the defendant caused the accident and that the injuries resulted from that accident. If causation is proved, then the judge will determine the damages that are to be awarded.

Damages awards may be found in several different areas. The most obvious is damages via costs accrued through medical treatment. Costs for medical transportation, doctor visits, prescriptions, and other hospital services are likely to be awarded as damages once causation has been proven. In addition to medical costs, a plaintiff may make claims for pain and suffering. These awards are highly discretionary, and are dependant upon the plaintiff’s ability to show that he has suffered disfigurement, impairment of ability to work, anxiety attributable to the injury, and mental distress. Pain and suffering damages cover a broad area, but to succeed on such claims it is imperative that the pain and suffering is proximately related to the accident and/or injury. A plaintiff may claim other damages such as loss of wages, loss of enjoyment of life, and loss of consortium. However, all must be a result of the accident and injury that serves as the claim’s foundation.

April 8, 2012

Happy Holidays to all of our Friends

by Berniard Law Firm

Happy Holidays from the Berniard Law Firm! We will resume blog posting on Tuesday.

March 26, 2012

Lawsuit Over Jackson Parish Car Wreck Dismissed Due to Late Filing

by Berniard Law Firm

Under Louisiana law, the plaintiff in a personal injury lawsuit may file his complaint with the court by fax. However, the plaintiff must, within five days of transmitting the fax, forward to the clerk of court the original, signed complaint and any fees that are due. If the plaintiff fails to forward the original document, the faxed copy will “have no force or effect.” La. R.S. 13:580. The fax option can potentially help preserve an action that is facing the expiration of its prescriptive period. However, as we will see with the recent case of Taylor v. Broomfield, the courts do not take lightly the requirement that the original complaint must be submitted to the clerk within the time frame outlined in the statute.

On September 17, 2009, Jarred Taylor was involved in a serious car accident in Jackson Parish. The other party to the collision was Brandon Goss who was driving a Mack truck owned by Broomfield, Inc. Taylor suffered various injuries including two broken ribs, multiple contusions, and lacerations to his face. Taylor’s lawyer initiated a lawsuit against Broomfield and its insurer on September 17, 2010 (exactly one year after the accident and the last day of the prescriptive period) by transmitting a faxed complaint to the Jackson Parish Court. The faxed complaint was not notarized. Although Taylor’s counsel had, according to Louisiana statute, until September 24, 2010 to send the original complaint to the court’s clerk, the original document was not filed until October 5, 2010. The original complaint filed with the clerk on October 5 included a verification notarized by one Donna Kay Tucker on September 20, 2010.

On November 12, 2010, Broomfield filed an exception of prescription requesting that Taylor’s suit be dismissed because it was filed after the one-year prescriptive period had elapsed. A hearing was held on January 13, 2011. In opposition to Broomfield’s exception, Taylor’s attorney argued that when his office faxed the complaint on September 17, 2010, his staff immediately mailed the original complaint, along with the filing fees, to the clerk of court. Several staff members from the law firm testified to this effect, but none of them could explain who the notary, Donna Kay Tucker, was or why the complaint’s verification reflected a date after the day the firm put the document in the mail. Ultimately, the trial judge denied the exception of prescription and held that the notary date was “merely harmless error” and that the complaint had been timely forwarded by Taylor’s counsel per state law. Broomfield appealed.

February 17, 2012

Second Part in Understanding the Anatomy of a Class Action Certification

by Berniard Law Firm

In our previous post, we began a discussion of the Union Carbide/Dow Chemical Taft plant chemical leak litigation filed by the Berniard Law Firm. This post continues with a review of the court’s analysis of numerosity in certifying a class. Under this requirement, the class must be so large that joinder of all members is impracticable. La. Code Civ. P. Art. 591(A)(1). Generally, a class action is favored when there are so many plaintiffs that individual suits would unduly burden the court, and so the class action would be more judicially expedient than other available procedures. See Cotton v. Gaylord Container. There is no distinct number of plaintiffs needed to fulfill the numerosity requirement. In this case, the proposed class included all the residents of St. Charles Parish as well as certain residents of Jefferson and Orleans Parishes–clearly a large number. The court found persuasive the fact that “the size of the individual claims of class members is small enough that individual lawsuits are impracticable,” but that that “separate suits would unduly burden the courts.” In the court’s view, a class action would “be more useful and judicially expedient.” Thus, the court concluded that “numerosity exists,” but that “the class is not too numerous to manage effectively.”

The court next examined the issue of commonality, or whether there were questions of law or fact common to the class. To satisfy the commonality requirement, there must exist “as to the totality of the issues a common nucleus of operative facts.” McCastle v. Rollins Environmental Services. of La., Inc. A common question is one that, when resolved for one class member, is resolved for all members. This issue is closely related to the predominance requirement, where the common questions predominate over any individual issues not shared among the class members. The Louisiana Supreme Court has indicated that predominance “entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class.” The goal is to “prevent[] the class from degenerating into a series of individual trials. Brooks v. Union Pacific R. Co. The same court has also held that a mass tort can only be brought as class action if it arose from one single cause or disaster; however, this requirement does not mean that the amount or extent of damages must be identical for all class members. “[V]arying degrees of damages … does not preclude class certification.” In order to meet the common cause requirement, each member of the class must be able to show individual causation based on the same set of facts and law that any other class member would use. See Bartlett v. Browning-Ferris Indus. Chem. Services, Inc.

With these considerations in mind, the court analyzed the common threads identified by the Plaintiffs as to their claims. First, all class members were physically located in the identified parishes on the date and time of the chemical release. They all suffered various (but similar) physical injuries and financial losses as a result of the release. Also, common questions of law and fact surrounded the Defendants’ negligence in failing to maintain its plant and prevent the chemical release. The court concluded that it was “satisfied … from the evidence presented that common factual issues predominate with regard to whether Defendants took reasonable steps to prevent the release of [ethyl acrylate] that occurred on July 7, 2009 and whether or not the release could cause the harm as alleged by the Plaintiffs to the members of the class.” The court’s reasoning was based in part on the testimony offered at the hearing by Dr. Patricia Williams, a toxicology expert. Dr. Williams concluded that the symptoms described by the class were consistent with the type of exposure to ethyl acrylate that resulted from the release at the Taft plant. Although the Defendants offered its own expert witness to rebut Dr. Williams’s testimony, the court nevertheless found that “a method of assessing general causation for the whole of the class exist[ed].” This permitted the court to reach the conclusion that common factual issues were present. The court thus identified a “common nucleus of operative facts” that permitted a finding that “uniform allegations of complaints of harm amongst the large number of class members that stem from one central release event” involved common legal issues among all members that superseded any individual concerns.

February 15, 2012

Anatomy of a Class Action Certification

by Berniard Law Firm

Early in the morning of July 7, 2009, a 640,000 gallon chemical storage tank at Union Carbide/Dow Chemical’s Taft plant began to rupture. The tank contained ethyl acrylate, a foul-smelling chemical used in making various products including industrial flavorings, fabric finishes, pigments and dyes, floor polishes, adhesives, and caulk. The substance is listed as a possible carcinogen by the National Institute of Occupational Safety and Health, and is known to cause a number of significant heath issues such as burning of the mucous membranes and eyes as well as respiratory irritation and nausea upon contact through the air. Westerly winds gusting as high as 20 miles per hour carried the chemical vapor into the neighboring communities. St. Charles Parish sheriff’s deputies began evacuating residents while officals from the Louisiana Department of Environmental Quality were summoned to perform air testing. Numerous residents in St. Charles Parish and surrounding parishes experienced extremely unpleasant physical symptoms as they came into contact with the chemical vapor.

The Berniard Law Firm filed a lawsuit on July 29, 2009 on behalf of those who suffered effects from the Taft plant chemical leak. On December 15, 2011, Judge Herbert Cade of the Civil District Court of the Parish of Orleans granted the Plaintiffs’ Motion for Class Certification. The class is defined as persons living or located in St. Charles Parish and certain areas of Orleans and Jefferson Parishes on July 7-8, 2009 who experienced “eyes, nose, or throat irritation, coughing, choking or gagging, or nausea, or headaches, dizziness, trouble breathing or other respiratory issues” as a result of their exposure to the ethyl acrylate that escaped the Taft facility. The court’s order contains an illustrative description of the process by which it analyzed the Plaintiffs’ argument for class certification, and an exploration of that analysis will serve as the basis for this and a series of subsequent blog posts.

Previously on this blog, we have examined the requirements for class certification in a federal case according to Rule 23 of the Federal Rules of Civil Procedure. Louisiana’s Code of Civil Procedure, in Article 591, sets forth a similar set of standards for certification. Specifically, a plaintiff who seeks to represent a class must show: